International Scholars

Permanent Residency

DISCLAIMER: Materials on this page are provided for informational purposes only and are not intended to provide legal advice. Immigration laws and regulations change on a regular basis and individual situations may vary significantly. Please consult with appropriate Ohio State personnel or an immigration attorney to ensure that you receive up-to-date information applicable to your individual situation.

The permanent residence ("green card") process at Ohio State

Most international faculty members and other international employees (e.g., research or program staff) begin work with the University in a temporary or "non-immigrant" status such as H-1b, O-1, J-1, TN, or F-1 practical training. Where employment is expected to be long-term, however, units may wish to consider attempting to obtain permanent resident or "immigrant" status for an international employee. In particular, units should begin the permanent residence process for tenure-track faculty as soon as practicable. This page provides a very brief summary of University procedures regarding the permanent residence process and contact information for further details.

Who handles the permanent residence ("green card") process for employees at Ohio State?

The Office of Legal Affairs, in conjunction with the Office of Human Resources and Office of International Affairs, oversees the handling of permanent residence filings by the University on behalf of international employees. ALL I-140 immigrant worker petitions (including EB-1b Outstanding Professor or Researcher petitions) and labor certifications filed by the University must be handled either by the Office of Legal Affairs, the Office of International Affairs, or by outside counsel appointed by the Ohio Attorney General’s office after a request to the Office of Legal Affairs. NO ONE at Ohio State may sign an I-140, I-129, ETA-9089, or G-28 on behalf of a foreign national employee without first discussing the matter with the Office of Legal Affairs or the Office of International Affairs.

An international employee is not permitted to find and pay for an attorney to represent the University in any immigration matter or otherwise hire an attorney to prepare immigration filings for the University. The international employee may find and hire the employee’s own attorney only in cases where the employee is permitted to self-petition and sign the I-140 personally (e.g., EB-1a extraordinary ability self-petitions and EB-2 national interest waiver "NIW" self-petitions). This restriction on legal representation is not a matter of choice or University policy. The restriction arises out of Ohio law, pursuant to which legal work on behalf of the University must be performed by the Office of Legal Affairs or other entities given permission to perform legal work by the Ohio Attorney General.

How does the permanent residence process begin for an international employee?

The employee’s supervisor or HR representative in the unit should contact the Office of Human Resources Global Services team to determine whether the employment will qualify for permanent residence sponsorship at the University and to examine other considerations that may inform initiation of the permanent residence process. This can be done by: (1) submitting a Permanent Residency Request through HR Connection; or (2) requesting a consultation with HR Global Services by submitting a Global/Immigration Services Inquiry Request through HR Connection. HR Global Services will communicate with the Office of Legal Affairs, and, if appropriate, begin the intake process for permanent residence.

What types of positions qualify for permanent residence sponsorship at Ohio State?

Positions that are full-time and meet the definition of “permanent” under the immigration regulations may qualify for permanent residence sponsorship.1 The position must be “of indefinite duration with a continued expectation of long-term employment.”

Please note, however, that the university does not automatically sponsor any employee for permanent residence. The request to start the permanent residence process must come from the hiring unit.

Who pays for the permanent residence process?

At Ohio State, the university pays for all costs associated with filings made by the employer. These costs include government filing fees for I-140 immigrant worker petitions and premium processing (if requested by the unit), advertising for the labor certification, courier costs, and any applicable attorney’s fees if Ohio State employs outside counsel as approved by the Ohio Attorney General.

The employee is responsible for costs associated with I-485 adjustment of status applications filed by the employee and any dependents, including associated I-765 and I-131 applications for employment authorization and advance parole (travel authorization). The university may pay (but is not required to pay) government filing fees for the I-485 applications but may not pay for or reimburse personal attorney’s fees. The university also does not pay for or reimburse any costs associated with self-petitions in the EB-2 National Interest Waiver category or the EB-1a extraordinary ability category (where the employee signs Form I-140).

What are the steps in the permanent residence process?

In most employment-based permanent residence cases, there are three steps:

  1. Labor certification. The U.S. Department of Labor (“DOL”) must certify that there are no U.S. workers ready able and willing to take a position before it may be offered to a noncitizen on a permanent basis. For university positions that do not involve teaching, an employer must conduct a recruitment process and file documentation with DOL attesting that no minimally qualified U.S. workers are available for the position. For university teaching positions, the recruitment process – commonly referred to as "special handling" – is different, and the employer must attest that the noncitizen is the best qualified for the position. Prior to filing a labor certification, an employer must obtain a prevailing wage determination from the U.S. Department of Labor (“DOL”) to ensure that the noncitizen will not be employed at an unfair wage.
  2. Immigrant worker petition. If a labor certification is approved, the employer must then file a petition with the Department of Homeland Security, U.S. Citizenship & Immigration Services (“USCIS”) to classify the noncitizen as an immigrant worker. This is known as the "I-140" petition.3 USCIS will determine whether the position falls into a category rendering the noncitizen eligible for permanent employment, and whether the noncitizen has the required background for the position. An employer may pay an additional government filing fee to obtain a 15 or 45 business day decision on the I-140 petition (“premium processing”), depending on the type of petition.4
  3. Application for permanent residence. If the I-140 is approved and there is no backlog for the category in which the noncitizen is applying (i.e., the noncitizen’s “priority date” is current), the noncitizen and the noncitizen’s dependents may then file their own permanent residence applications with USCIS – known as "I-485" applications.5 (Where there is no backlog at the time of filing the I-140, the I-485 may be filed concurrently with the I-140.) In many cases, the noncitizen must wait until the backlog clears for the noncitizen’s category before filing the I-485. This can sometimes take years, depending on the noncitizen’s country of birth, and the noncitizen usually must find some way to maintain nonimmigrant status in the U.S. during the wait. In cases where the noncitizen is outside the U.S., the noncitizen and the noncitizen’s family will apply for immigrant visas at a U.S. consulate. At this stage of the process, the primary focus of the government will be on the noncitizen's own background, including the noncitizen's immigration history, criminal record, health, etc. Before approving the I-485, USCIS must ensure that the offer of employment is still valid. (In some cases, the noncitizen may switch to a same or similar job after the I-140 has been approved and the I-485 has been pending at least 180 days.)

Certain types of petitions do not require a labor certification. In these cases, the employer or noncitizen's initial filing will be the immigrant worker petition (the I-140). These labor certification exempt petitions carry a high burden of proof, however, and there is always the possibility that such a petition will be denied. Labor certification exempt petitions sometimes filed by Ohio State include:

Outstanding researcher or professor (“EB-1b”). These I-140 petitions must be filed by the employer. The noncitizen must be internationally recognized as outstanding in a specific academic field, have three years of relevant teaching or research experience, and have a job offer for a tenure-track or permanent research position.

Alien of extraordinary ability (“EB-1a”). These I-140 petitions may be filed by an employer or as a self-petition. The noncitizen must show sustained national or international acclaim in the noncitizen’s field of endeavor and demonstrate that the noncitizen will continue to work in that field. This is an extremely difficult standard to meet.

National Interest Waiver (“NIW”). These I-140 petitions may be filed by an employer or as a self-petition. The noncitizen must have an advanced degree or exceptional ability in the sciences, arts, or business. The noncitizen must demonstrate that it is in the national interest to waive the labor certification requirement. The USCIS Administrative Appeals Office has set forth a complex legal test for meeting this standard, but it is generally deemed to be a slightly lower standard than that for outstanding professors\researchers. The National Interest Waiver category is a “2nd preference” category – meaning that backlogs based on the immigration quota system will be longer than those for outstanding researchers\professors, and aliens of extraordinary ability.

If USCIS approves an I-140 in any of the above categories then, as with a labor certification-based case, the noncitizen and the noncitizen’s dependents may move on to filing I-485s if the noncitizen’s priority date is current. (Where the priority date is current at the time of filing the I-140, the I-485 may also be filed concurrently with the I-140.) 

The employer or noncitizen may work on a permanent residence case in one or more categories simultaneously or in sequence, and denial of a labor certification or I-140 petition does not preclude a new filing in the same or different category in the future.

How long does the permanent residence process take?

Each individual case is different, government processing times may vary, and priority date progression is sometimes difficult to predict. Units should plan on a minimum of 18 months; however, the process may take many years, depending on country of birth and employment-based immigration quota backlogs. Those wishing to examine current government processing times should inspect the following resources:

U.S. Department of Labor Prevailing Wage Determination and Labor Certification Processing Times:

flag.dol.gov/processingtimes

For prevailing wages, scroll down to “Average Number of Days to Issue Wage Determinations,” and look at “PERM” and the “OES (Calendars Days) number.

For labor certifications scroll down to “Average Number of Days to Process PERM Applications” and look at “Analyst Review” and the “Calendar Days” number.

USCIS processing times for various petitions and applications:

egov.uscis.gov/processing-times/ 

Ohio State I-140s are typically processed at the Nebraska Service Center.

Ohio State I-129s are typically processed at the California Service Center.

Processing times for I-485s based on Ohio State I-140s should be checked using the USCIS Columbus, Ohio Field Office.

Who do I contact for more information?

Mark J. Hedien in the Office of Legal Affairs (hedien.1@osu.edu)

Ryan Walker in Human Resources\Global Services (walker.863@osu.edu)

Inquiries regarding F-1, J-1, or H-1b status should be directed to the Office of International Affairs, International Student and Scholar Services.

Inquiries concerning permanent residence (“green cards”) or O-1s, TNs, and P-1s should be directed to the Office of Legal Affairs or to HR Global Services.

 

1In limited situations, part-time employment may qualify under for EB-1a Extraordinary Ability or EB-1b Outstanding Professor or Researcher I-140 petitions, but never for a labor certification-based petition.

2Note that self-petitioning in the EB-1a Extraordinary Ability or EB-2 National Interest Waiver categories may still be available for qualified individuals who do not have “permanent” positions at the university.

3Immigration petitions and applications are often referred to by their government form number.

4USCIS sometimes suspends premium processing. When this happens, an expedited decision on the I-140 will not be available.

5Only a limited number of noncitizens per year may become permanent residents based upon employment in the United States. Only approximately 7% of these noncitizens may come from one country. Applicants from India and China each typically account for well over 7% of the total. (Occasionally, the worldwide limit and per-country limits affect other nationalities as well.) Backlogs develop when employment-based categories are oversubscribed. A noncitizen’s place in line in the permanent residence quota system is determined by the date the first step in the permanent residence process occurs (e.g., date of labor certification filing or date of I-140 filing). This date is known as the “priority date.” Every month, the U.S. State Department publishes the “Visa Bulletin” indicating which dates are “current” for permanent residence categories subject to numerical limitations. When a noncitizen’s priority date is current, a noncitizen may move on to the last step in the permanent residence process (filing an I-485 or applying for an immigrant visa at a U.S. consulate overseas).